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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Croft v. Parnell (7/9/2010) sp-6491

Croft v. Parnell (7/9/2010) sp-6491, 236 P3d 369

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ERIC CROFT, a private individual, )
and ALASKANS FOR CLEAN ) Supreme Court No. S- 13200
ELECTIONS, an initiative group, )
and TIM JUNE, STEVE CLEARY, ) Superior Court No. 3AN-07- 09339 CI
and JOE MCKINNON, initiative )
sponsors, ) O P I N I O N
)
Appellants, ) No. 6491 July 9, 2010
)
v. )
)
SEAN PARNELL, LIEUTENANT )
GOVERNOR OF THE STATE OF )
ALASKA, and the STATE )
OF ALASKA, )
)
Appellees.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Eric Croft, Law Offices of Eric
          Croft,  Joseph  H. McKinnon, Law  Offices  of
          Joseph    H.    McKinnon,   Anchorage,    for
          Appellants.   Michael  A.  Barnhill,   Senior
          Assistant   Attorney  General,   Richard   A.
          Svobodny,  Acting  Attorney General,  Juneau,
          for Appellees.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          CHRISTEN, Justice.

I.   INTRODUCTION
          Sponsors  of  an  initiative challenge  the  lieutenant
governors refusal to certify the initiative for the ballot.   The
lieutenant  governor denied certification because  he  determined
that the initiative violated the single-subject requirement of AS
15.45.040.  The sponsors filed suit in the superior court seeking
a  declaration  that the initiative did not violate  the  single-
subject  rule.   The superior court granted summary  judgment  in
favor  of  the  lieutenant  governor  and  the  sponsors  appeal.
Because  the soft dedication of funds connecting the two  aspects
of the initiative is an insufficient link, and because we find no
other sufficient connection between the initiatives proposed  new
oil  production  tax  and  the  initiatives  proposed  new  clean
elections  program,  we  agree that the initiative  violates  the
single-subject rule.  Accordingly, we affirm the superior  courts
order  entering  summary  judgment in  favor  of  the  lieutenant
governor.
II.  FACTS AND PROCEEDINGS
     
          On  May  29,  2007,  Tim June, Steve  Cleary,  and  Joe
McKinnon  submitted  an application for a  ballot  initiative  to
Lieutenant  Governor  Sean Parnell.1  The initiative  proposed  a
program  to  provide public campaign funding  to  candidates  for
state  office on a voluntary, opt-in basis.  The initiative  also
proposed  a  three-cent tax on each barrel  of  oil  produced  in
Alaska and stated that [t]he legislature may appropriate  .  .  .
the  proceeds  of  the  tax to fund the  program.   The  proposal
included  a  non-binding directive that the legislature  transfer
excess funds to the Permanent Fund Dividend.
          After   submitting  the  initiative  application,   the
sponsors  engaged in informal communications with the  Department
of  Law  that  led  the  sponsors to  file  a  second  initiative
application.   This  second initiative application  proposed  the
public campaign funding program but not the additional tax on oil
production.
          Lieutenant  Governor Parnell reviewed the  applications
as required by AS 15.45.070.  This statute directs the lieutenant
governor  to either certify an application for placement  on  the
ballot  or  explain  why  certification is  denied.2   Lieutenant
Governor  Parnell  denied certification of the  first  initiative
proposal,  explaining  that the initiative violates  the  single-
subject  rule because the initiative addresses two subjects  that
have  no  fair relation to each other: (1) it creates a voluntary
system of public campaign financing, and (2) it imposes a tax  on
oil production.
          Lieutenant Governor Parnell approved the second version
of  the  initiative application.  It appeared on the August  2008
ballot but did not pass.
          The initiatives sponsors, Eric Croft and a group called
Alaskans for Clean Elections (collectively, the Sponsors),  filed
a  complaint  in  the superior court against Lieutenant  Governor
Parnell   and  the  State  of  Alaska  (collectively,  Lieutenant
Governor)  seeking  a  declaration that the  Lieutenant  Governor
erroneously rejected the first initiative.
          The superior court granted summary judgment in favor of
the Lieutenant Governor in June 2008.  The Sponsors appeal.
III. STANDARD OF REVIEW
     
          When  reviewing a grant of summary judgment,  we  apply
our  independent  judgment, affirming if the record  presents  no
genuine  issue of material fact and if the movant is entitled  to
judgment  as  a  matter  of  law.3  In  determining  whether  the
prevailing party was entitled to judgment as a matter of law,  we
draw [] all factual inferences in favor of, and view [] the facts
in the light most favorable to, the non-prevailing party.4
          We   interpret  the  Alaska  Constitution   using   our
independent  judgment,   according to reason,  practicality,  and
common  sense, taking into account the plain meaning and  purpose
of the law as well as the intent of the drafters.5
IV.  DISCUSSION
          The  parties agree that the only issue in this case  is
whether the Sponsors initiative violates the Alaska Constitutions
single-subject  rule.6   Article II, section  13  of  the  Alaska
Constitution  provides,  in  part, that  [e]very  bill  shall  be
confined  to  one subject.  Our court has ruled on challenges  to
bills  and initiatives under this provision in only seven cases.7
In each case, we identified a single subject that encompassed all
the  provisions  of the challenged bill or initiative;  that  is,
every provision of the bill or initiative, considered on its own,
related to a broader, single subject.8
          Despite  their  contrary outcomes, the  superior  court
relied  on  these  cases  and ruled in favor  of  the  Lieutenant
Governor,  explaining that there is [no] connection  between  the
type  of revenue created . . . [and] the type of program proposed
by  the initiative.  On appeal, the Sponsors argue that the trial
court improperly interpreted the single-subject rule to require a
nexus between a funding source and the funded program beyond  the
fact  of  the  funding.  The Sponsors argue that  even  when  two
provisions of a bill are not otherwise related by subject, if one
provision  creates a program and another imposes a tax calibrated
to  collect approximately the amount of revenue necessary to fund
the  program,  a non-binding, soft dedication of funds  from  the
revenue source is sufficient to unite what would otherwise be two
subjects  into  one, at least for purposes of the  single-subject
test.   The  Sponsors  also argue, in the alternative,  that  the
initiatives  oil  tax  is thematically related  to  the  campaign
finance  program.   We  are  not persuaded  by  either  of  these
arguments.
          The single-subject rule protects the voters ability  to
effectively  exercise  their right  to  vote  by  requiring  that
different proposals be voted on separately.  This approach allows
voters  to express their will through their votes more precisely,
prevents the adoption of policies through stealth or fraud,9  and
prevents the passage of measures lacking popular support by means
of log-rolling.10
          In ruling on single-subject challenges, we must balance
the  rules  purpose  against  the  need  for  efficiency  in  the
legislative  process.   If the rule were  applied  too  narrowly,
statutes  might  be  restricted unduly in scope  and  permissible
subject  matter, thereby multiplying and complicating the  number
          of necessary enactment[s] and their interrelationships.11  Our
solution has been to construe the single-subject provision . .  .
with considerable breadth.12  We have consistently articulated the
substance of the test to reflect this approach:
          All  that is necessary is that [the] act
          should embrace some one general subject;
          and  by this is meant, merely, that  all
          matters  treated  of should  fall  under
          some  one  general idea, be so connected
          with  or  related to each other,  either
          logically  or  in popular understanding,
          as  to  be parts of, or germane to,  one
          general subject.[13]
          
In  applying  this  test, we disregard mere verbal  inaccuracies,
resolve  doubts in favor of validity, and strike down  challenged
proposals only when the violation is substantial and plain.14
          In  each  of  the seven cases in which this  court  has
addressed  a  single-subject challenge, we upheld the  challenged
bill or initiative by determining that all provisions related  to
a single general subject, theme, or purpose.15  But we have never
addressed  the  question, raised by the Sponsors  in  this  case,
whether  creating a revenue source that might fund  an  otherwise
unrelated program suffices to unite the revenue source  with  the
program as a single subject.
          The  Sponsors argue that the creation of a program  and
the  soft  dedication  of funds for that program  are  inherently
related  provisions  as  a  matter  of  both  logic  and  popular
understanding.   They  argue that the Washington  Supreme  Courts
decision  in Wash. Assn of Neighborhood Stores v. Wash.  supports
their position.16  Neighborhood Stores involved an initiative that
increased  taxes on cigarettes and dedicated the new  revenue  to
existing  programs  in the areas of violence reduction  and  drug
enforcement,  health services, and water quality, with  remaining
funding  allocated to low-income health care programs  and  other
programs.17   The court held that the initiative did not  violate
that  states single-subject rule18 because the new taxes provided
revenue  to  programs that collectively constituted a single  and
rationally   unified  proposal  for  improving  the   health   of
[Washingtons] low-income citizens without imposing a net loss  of
tax revenue on other preexisting programs.19
          In  this case, the superior court observed that neither
Neighborhood   Stores  nor  any  other  example   identified   by
appellants  addressed  a  single  initiative  that  proposed  the
creation  of an entirely new government program and also proposed
the  creation of a new and thematically unrelated revenue source.
The Neighborhood Stores initiative, which created and dedicated a
revenue  source,  is fundamentally different  from  the  Sponsors
initiative, which proposed the creation and soft dedication of  a
new  revenue source, and proposed the creation of an entirely new
government  program.  The latter runs afoul of the single-subject
rule  because it does not provide the voters with an  opportunity
to  express  their  approval  or  disapproval  of  each  distinct
proposal.
          Neighborhood Stores is also distinguishable because  it
was  decided  in  the context of Washingtons prohibition  on  the
dedication  of  funds  beyond a single  biennium,20  a  framework
different  from  the proscription of dedicated funds  in  Alaska.
The   Alaska   Constitution  expressly  prohibits   the   binding
dedication  of  state revenues for specific projects.21   As  the
superior   court  correctly  noted,  [t]he  additional   proceeds
generated  by  the  [proposed] oil production tax  need  not  and
indeed  cannot  be  appropriate[d]  to  fund  the  Alaska   Clean
Elections Program without running afoul of Article IX, section  7
of  Alaskas Constitution.  Because the dedication of funds is not
permitted  in Alaska, a soft dedication cannot be considered  for
purposes  of  a single-subject analysis and therefore  cannot  be
used  to make two independent provisions of an initiative address
one  subject.  Without the soft dedication, the Sponsors proposed
initiative  will  satisfy the requirements of the  single-subject
analysis  only  if  its  two  provisions   campaign  finance  and
taxation  of  the  oil industry  otherwise  relate  to  a  single
subject matter.
          The Sponsors argue that even if the soft dedication  of
tax revenue cannot be considered, the proposed oil production tax
is  still  related to the subject of clean elections because  the
oil  industry and the oil field services companies . . . exert  a
tremendous   and   undue  influence  on   Alaska   politics   and
politicians,  and  contributions  from  these  groups  have  been
fueling  [electoral] campaigns in Alaska for years.  But the  oil
industry  is  not the only source of contributions  to  political
campaigns  in Alaska, and the proposed tax is on oil  production,
not  the  political activities of the oil industry.  The  support
for  the  Sponsors argument  two newspaper articles and a listing
of   the   top   groups  lobbying  the  Alaska  Legislature    is
insufficient  to  demonstrate a clear or  established  connection
between the oil industry and a need for public financing of state
electoral campaigns.
          The  proposed initiative directly implicates one of the
main  purposes of the single-subject rule  the prevention of log-
rolling   in  two  ways.  As noted earlier, the essence  of  log-
rolling  is  appealing to different constituencies  by  including
distinct provisions calculated to obtain sufficient votes to pass
a  measure.22 The superior court observed that record oil and gas
prices,  high  oil company profits, the Exxon Valdez  litigation,
and  controversy regarding a proposed gas pipeline make  the  oil
industry  a target for some groups whose votes on this initiative
could  be  driven entirely by such concerns.  We agree  that  the
events  and  issues cited by the superior court  could  influence
some  voters, but we note that other voters may be equally driven
by  strong  feelings  of support for the  jobs  and  tax  revenue
generated  by  the oil industry in Alaska.  Either way,  coupling
the  approval  of  a new oil production tax with  approval  of  a
program  to  publicly fund elections deprives the  voters  of  an
opportunity  to send a clear message on each subject  encompassed
by the Sponsors initiative.
          The  second way the initiative violates the prohibition
against  log rolling is its inclusion of a non-binding  directive
          that the legislature transfer funds left over from public
elections  to the Permanent Fund Dividend.23  The Permanent  Fund
Dividend  is  entirely  unrelated to the  purpose  of  the  clean
elections  program;  offering the chance of  increased  Permanent
Fund Dividend payments runs the risk of garnering support for the
clean elections program from voters who are otherwise indifferent
or even unsupportive  of publicly funded campaigns.
V.   CONCLUSION
          For the reasons addressed above, we AFFIRM the decision
of the superior court.
_______________________________
     1    The initiative was titled An Act establishing a program
of  public funding for campaigns for state elected offices, to be
known as the Alaska Clean Elections Act, and amending the oil and
gas  production tax to levy and collect a surcharge on oil  as  a
source of funding for that program.

     2     AS  15.45.070 provides: Within 60 calendar days  after
the  date  the  application is received, the lieutenant  governor
shall  review  the  application and shall either  certify  it  or
notify the initiative committee of the grounds for denial.

     3     Beegan v. State, Dept of Transp. & Pub. Facilities,195
P.3d  134,  138  (Alaska 2008) (citing Matanuska  Elec.  Assn  v.
Chugach Elec. Assn, 152 P.3d 460, 465 (Alaska 2007)).

     4     State  v.  Jeffery, 170 P.3d 226,  229  (Alaska  2007)
(citing  Lewis  v. State, Dept of Corr., 139 P.3d  1266,  1268-69
(Alaska 2006)).

     5     Id. at 230 (quoting Native Vill. of Elim v. State, 990
P.2d 1, 5 (Alaska 1999)(internal quotation marks omitted)).

     6     The  Sponsors application was rejected  for  violating
the  single-subject  provision of AS  15.45.040.   Neither  party
argues  that  this  rule  differs from  restrictions  imposed  by
article  II,  section  13  of  the  Alaska  Constitution,   which
requires  that  every bill may have only one  subject.   We  have
previously  explained  that,  regardless  of  AS  15.45.040,  the
[a]rticle  II  restriction  . . . applies  to  initiatives  under
article  XII,  section 11, which provides  that  the  people  may
exercise   the   legislatures  law-making  powers   through   the
initiative.   Yute Air Alaska Inc. v. McAlpine,  698  P.2d  1173,
1179 n.2 (Alaska 1985).

     7     See Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska
2002);  Yute Air, 698 P.2d at 1173;  State v. First Natl Bank  of
Anchorage, 660 P.2d 406 (Alaska 1982); Short v. State,  600  P.2d
20  (Alaska 1979); North Slope Borough v. SOHIO Petroleum  Corp.,
585  P.2d  534  (Alaska 1978); Gellert v. State,  522  P.2d  1120
(Alaska  1974); Suber v. Alaska State Bond Comm.,  414  P.2d  546
(Alaska 1966).

     8     See  Evans, 56 P.3d at 1049, 1070 (changes to  damages
recoverable  for torts, changes to tort statutes of  limitations,
change  to  allocation of fault between parties  in  tort  suits,
change  to offer of judgment rules, and grant of partial immunity
to  hospitals all within the single subject of civil  actions  );
Yute  Air, 698 P.2d at 1175, 1181 (repeal of regulations of motor
and  air  carriers  in  Alaska, prohibition  on  further  similar
regulation, and requirement that governor seek repeal of  federal
statute that, among other things, regulates shipping by sea,  all
embraced  by [t]he subject transportation ); First Natl  Bank  of
Anchorage,  660  P.2d at 414-15 (provisions  regulating  sale  of
private  land,  and provisions on states power  to  lease  state-
owned  land and zone private lands all in some respect  concern[]
land);  Short,  600  P.2d  at  22-24  &  n.2  (purposes  of   new
correctional facilities sufficiently related to the  purposes  of
new  buildings for state troopers, fish and wildlife  protection,
a  motor  vehicles  division, [and] a fire prevention  division);
SOHIO,  585  P.2d at 545-46 (various provisions on municipal  and
state taxes all relate directly to state taxation); Gellert,  522
P.2d  at 1123 (flood control projects and small boat harbors  all
part  of  a  cooperative  water resources  development  program);
Suber,  414  P.2d  at  557  & n.23 (criminal  penalty  for  false
statements  in  application for earthquake  relief  funds  fairly
incidental   to  the  general  subject  .  .  .  of   grants   to
homeowners).

     9    See Suber, 414 P.2d at 557.

     10     Gellert,  522 P.2d at 1122 (Log-rolling  consists  of
deliberately   inserting  in  one  bill  several  dissimilar   or
incongruous  subjects  in order to secure the  necessary  support
for passage of the measure. ).

     11     Gellert, 522 P.2d at 1122; see also Evans, 56 P.3d at
1069 (quoting State v. First Natl Bank of Anchorage, 660 P.2d  at
415  );  Yute  Air,  698  P.2d at 1183  (Moore,  J.,  dissenting)
(citing  Gellert,  522  P.2d at 1122);  Short,  600  P.2d  at  23
(quoting Gellert, 522 P.2d at 1122).

     12    Gellert, 522 P.2d at 1122.

     13      Gellert,  522  P.2d  at  1123  (quoting  Johnson  v.
Harrison,  50  N.W.  923, 924 (Minn. 1891))  (internal  quotation
marks  omitted); see also Evans, 56 P.3d at 1069  (quoting  First
Natl  Bank of Anchorage, 660 P.2d at 415); Yute Air, 698 P.2d  at
1180-81  (quoting Gellert, 522 P.2d at 1123); First Natl Bank  of
Anchorage, 660 P.2d at 415 (quoting Gellert, 522 P.2d  at  1123);
Short,  660  P.2d  at  24 (quoting Gellert, 522  P.2d  at  1123);
SOHIO, 585 P.2d at 545 (quoting Gellert, 522 P.2d at 1123).

     14     Gellert, 522 P.2d at 1122 (quoting Suber, 414 P.2d at
557);  see  also Evans, 56 P.3d at 1069 (quoting First Natl  Bank
of  Anchorage,  660 P.2d at 415); First Natl Bank  of  Anchorage,
660  P.2d  at  415 (quoting SOHIO, 585 P.2d at 545);  Short,  600
P.2d  at 23 nn. 7 & 8 (citing SOHIO, 585 P.2d at 545, and quoting
Suber,  414  P.2d at 557); SOHIO, 585 P.2d at 545 (citing  Suber,
414 P.2d at 557).

     15    See supra note 8.

     16    70 P.3d 920 (Wash. 2003).

     17    Id. at 922.

     18    Wash. Const. art. II,  19.

     19    Neighborhood Stores, 70 P.3d at 926.

     20    Wash. Const. art. VIII,  4.

     21    Article IX, section 7 prohibits binding dedications of
state  revenues  to  specific projects.  Article  XI,  section  7
independently prohibits initiatives from dedicating revenues.

     22    See supra note 10.

     23    This provision is part of proposed AS 15.14.010(e).

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